Washington, DC – Today, the American Civil Liberties Union called on Congress
to move forward with contempt proceedings against White House officials who
refused to cooperate with legitimate subpoenas issued under congressional
authority. The ACLU also released a memo to assist Congress in understanding the
limits of executive privilege and the authorities it has to compel compliance
with the subpoenas issued by the Senate Judiciary Committee on the National
Security Agency’s warrantless wiretapping program. The ACLU’s memo concludes
that the documents requested are not covered under the privilege and should be
released immediately. The administration has already missed two deadlines set by
the committee.

"Many presidents have overreached by claiming executive privilege to hide
documents and witnesses from public oversight, and each time Congress has
slapped their hands," said Caroline Fredrickson, director of the ACLU Washington
Legislative Office. "Today’s Congress must do the same if it wishes to operate
as a meaningful and equal branch of government."

The courts have long held that executive privilege is not absolute, and even
where it applies it can be overcome if the other branches of government can show
they need the information. Congress has significant legislative and oversight
interests in the NSA warrantless wiretapping program because it is currently
considering legislation to replace the Protect America Act.

Most importantly, the courts have held that the privilege cannot be invoked
to hide government wrongdoing. Even where issues concerning national security
are at stake Congress has a right to the information it needs to fulfill its
constitutional obligations. Facing a possible constitutional crisis capable of
destroying our crucial checks and balances, the ACLU also reminded Congress just
how vital its oversight and legislative role is.

"The federal courts have long held that Congress has the authority not only
to pass laws, but investigate their implementation," added Fredrickson.
"Congress is facing an historic moment where it can either fight for its
rightful place in our constitutional system of government or accept the
president’s continued and sweeping claims of supremacy. It’s do or die time for
the separation of powers."